If not altered by the court or the parties, the sheer number of lawyers involved in asbestos litigation can be an overwhelming complication. Simple matters like sending notices to parties or scheduling hearings are major tasks. Hearings become complex and arguments repetitive when, as one judge described it, lawyers are “up and down, like pistons.”
Implementation of the Wellington plan to date has served to reduce the number of lawyers representing defendants from approximately 1,260 to approximately 60 regional law firms. In a specific case, the effect is to reduce the number of defense lawyers from approximately twenty to about three to five. In addition to the obvious reduction of transactions costs to the defendants, every aspect of the case becomes simpler, including scheduling depositions, notifying defendants, negotiating settlements, and conducting trials. Because Wellington’s participation in a case will be triggered by showing liability of one signatory to the Wellington plan, extensive proof of exposure to a product of each defendant is no longer essential.52
In at least two jurisdictions, respondents reported that defendants had agreed not to file cross-claims against each other. Such agreements simplify the litigation, as do judicial orders deeming such claims to have been filed, avoiding the duplicative paperwork of cross-claims and answers.Ba
- A claim or verdict against one signatory is sufficient to invoke the involve
ment of the facility. Some lawyer-respondents, however, reported that Wellington
internally allocates responsibility based on proof that plaintiff was exposed to the
product of a particular defendant, thereby encouraging defense counsel to insist on
product identification evidence in settlement negotiations. - See, e.g., Johnston v. Johns-Manville Prods. Corp. (W.D. Pa. Jan. 23, 1980)
(unpublished order). See generally T. Willging, supra note 4, at 21-22.
|
TABLE 2 Complicating and Simplifying Factors in Asbestos Litigation |
||
| Complicating Factors | Simplifying Factors | |
| Organization of counsel | Numbers of parties and lawyers
Delegation in law firms leads to delay in evaluation of cases, settlement at courthouse steps or later |
Common defense agreement
(Wellington) reduces numbers oflawyers and parties Deeming of cross-claims and “opt-out” procedure for motions Unresolved |
| Settlements | Wellington disrupts settled
bargaining patterns and reduces mass settlements Lack of alternatives to court filings Complexity of communications with multiple counsel Lack of authoritative rulings and settlements Lack of settlement formulas Lack of sufficient trial dates to reduce backlog |
Unresolved
Claims facility planned Wellington provides stable, simplified communication Trials, rulings, and settlements have accumulated Ranges of values developed from prior trials and settlements Partially unresolved Increasing clusters of cases Special assignment systems Alternative trial structures |
| Pretrial | Reli tigation of settled issues such as state-of-art
Clogging dockets with cases oflimited impairments Repetitive discovery Length and complexity |
Waiver of state-of-art and punitive claims in East Texas
Consolidation for resolution of common pretrial issues Creation of inactive asbestos docket Screening cases and plaintiffs Accumulation of discovery materials; creation of document depositories and computer data bases Unresolved in some districts |
| Trial | Length and complexity | Pretrial, evidentiary, and trial rulings establish format
Reverse bifurcation |
Asbestos cases tend to be handled by lawyer-specialists representing plaintiffs and defendants.54 Organization of lawyers into specialists promotes simplification in at least two ways. Evaluations of cases and development of settlement formulae become easier. In addition, specialists are able to identify repetitive tasks and delegate them to paralegals, who prepare the information for trial or settlement in a standard, predictable format. On the other hand, such delegation may complicate settlement, because the lawyer with authority to settle may not learn the facts necessary to evaluate the cases until immediately before trial. In that case, routiniza-tion of pretrial preparation does not equate with simplification of dispositions.
While the dominant response was that Wellington simplifies settlement negotiations, that opinion was not unanimous. Simplification occurs through reduction of the number of parties to a negotiation and through specialization occurring as a result of dealing with one major adversary on a repeated basis. Wellington, however, changes the status quo regarding negotiations and this causes disruptions, at least in the short term. Prior to Wellington, plaintiffs could negotiate separately with a number of defendants before trial. This permitted plaintiffs and their counsel to settle early with some defendants and receive compensation that would help meet any expenses incurred by plaintiff and finance the litigation. Frequently, these settlements would be on a mass basis according to predetermined formulae.
Concentration of most defendants into the Wellington entity results in hard bargaining and perhaps a shift in negotiating power and in the timing of settlements. Reports were uniform that it was difficult or, in some cases, impossible for plaintiffs to bargain with Wellington defendants prior to the week before trial. This may be a product of understaffing in the newly designated Wellington law firms. Some lawyers alleged, however, that the Wellington policy is not to settle cases that are not scheduled for trial. Wellington denies this.55 Outside of the settlements in Northern Ohio and
- Hensler, supra note 1, at 68-76. Implementation of representation of Welling
ton defendants by local counsel has drastically increased the specialization among
defense attorneys, concentrating defense representation in about sixty law firms. - Cf. Plaintiff Bar Blames Wellington for Mounting Trial Backlog, Mealey’s
Litig. Reps.: Asbestos, Oct. 10, 1986, at 5,159 (Tennessee plaintiffs’ lawyer quoted:
“On the eve of trial . . . [Wellington will] talk to us, but no settlements are reached.
This is pretty much the case around the country.”); Wellington Pledges ADR Pro
gram Within Six Months, id., July 25, 1986, at 4,673 (Wellington CEO quoted: “in
our first year our achievements have included settlement of cases not immediately
involved in trial”). This statement may refer to cases in the Northern District of
Ohio. A Pittsburgh plaintiffs lawyer claimed: “In Ohio, there is one attitude, but in
Pennsylvania we can’t get anything moving [with Wellington].” Id, at 5,160.
Chapter III
Eastern Texas,56 however, there have been no large-scale settlements announced with Wellington. In the short term, Wellington has altered the timing of settlements to the detriment of individual plaintiffs.
In some jurisdictions, there were complaints that Wellington counsel did not accept values established through negotiations with individual defendants and that they sought to reduce total settlement values.57 At the same time, Wellington counsel tried to break the pattern in which plaintiffs counsel was frequently the only source of information about the total settlement. In some jurisdictions, more than one law firm competes for the Wellington business; some plaintiffs’ lawyers assert that this results in posturing and saber-rattling, at the expense of good-faith negotiations. In those same jurisdictions and others, there were complaints that Wellington counsel engaged in a subtle undermining of the structure of the asbestos litigation by relitigating issues thought to have been settled by standard, districtwide rulings.
The bottom line is that Wellington has indeed settled the vast majority of cases that have been scheduled for trial during its brief existence.58 It has not, however, fulfilled its promise of providing a prefiling vehicle for settlement and will not have a claims facility available until “early 1987.”59 Despite serious delays in implementing the claims facility and alternative dispute resolution procedures, Wellington shows promise of further simplification of asbestos litigation. Once the claims facility is established, early settlements should be available through alternative dispute resolution procedures. Full operation of the facility should cause a dramatic reduction in the number of claims filed in court. In the absence of
- See the discussion infra at notes 210 (Eastern Texas) and 143 to 145 (Northern
Ohio). These settlements were channeled by the grouping of cases by those courts. - Evidence of strife between some plaintiffs’ counsel and Wellington counsel has
surfaced in public forums. One firm has sued the Wellington facility on antitrust
grounds. Sweeney v. Acands, C85-2984 (N.D. Ohio 1985). Another has challenged the
ability of Wellington to represent codefendants with arguably competing interests in
the same litigation. Arguments Heard on Joint Representation of Wellington Mem
bers, Mealey’s Litig. Reps.: Asbestos, Dec. 26, 1986, at 5,512; see also Attorneys Dis
cuss Wellington Problems: Anti-trust Suit Possible, id., Jan. 23, 1987, at 5,659 (pro
posed antitrust suit against Wellington “being worked on”). - As of December 1986, Wellington claimed to have settled 5,500 cases at an
average cost of $72,000 a case, a total of $396,000,000 in settlements. Wellington
Said to Be Paying $72,000 Per Case, Mealey’s Litig. Reps.: Asbestos, Dec. 26, 1986, at
5,513. See also infra table 6, showing a declining number of trials in the ten courts
studied.
59. Wellington Expects ADR in Place in Early 1987, Mealey’s Litig. Reps.: Asbes
tos, Nov. 28, 1986, at 5,374. The computer system was expected to be fully oper
ational by February 1987.
a claims facility, plaintiffs have had no alternative to filing lawsuits.